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In VISUAL MEMORY LLC v. NVIDIA CORPORATION, dated August 15, 2017, the Federal Circuit found an improved memory system to be patent eligible under 35 U.S.C. Sec. 101, despite the fact that the improvement resides at least in part in the form of programmable features. More particularly, the patent in question, U.S. Patent No. 5,953,740, owned by Visual Memory, LLC, provides a memory system with programmable operational characteristics that can be tailored for use with multiple different processors without a reduction in performance. It discloses a main memory 12 and three separate caches: internal cache 16, pre-fetch cache 18, and write buffer cache 20. Id. at col. 3 ll. 34–53. A schematic of the ’740 patent’s memory system is shown in Figure 1. The three caches possess programmable operational characteristics that are programmable based on the type of processor connected to the memory system. The ’740 patent’s main memory constitutes an advance over the prior art fast page mode memory because it is divided into pages containing either code or non-code data, and “the system provides a bias towards code pages or non-code pages depending upon the type of processor connected to the system.” Id. at col. 4 ll. 55–58. For one processor type, the register will hold the address of the most recently accessed code page; for another processor type, the register will hold the address of the most recently accessed non-code page. The specification discloses that combining the selective open page bias with the fast page mode offers faster access to main memory and increases system performance. Id. at col. 5 ll. 6–8. Taken together, the “multiple mode operation” of the ’740 patent confers a substantial advantage by “allow[ing] different types of processors to be installed with the [same] subject memory system without significantly compromising their individual performance.” Id. at col. 5 ll. 25–29.

1. A computer memory system connectable to a processor and having one or more programmable operational characteristics, said characteristics being defined through configuration by said computer based on the type of said processor, wherein said system is connectable to said processor by a bus, said system comprising:

a main memory connected to said bus; and

a cache connected to said bus;

wherein a programmable operational characteristic of said system determines a type of data stored by said cache.

The district court had concluded that the claims were directed to the “abstract idea of categorical data storage,” which humans have practiced for many years. Visual Memory LLC v. NVIDIA Corp., No. 15-789, 2016 WL 3041847, at *4 (D. Del. May 27, 2016). The court’s step-two analysis found no inventive concept because the claimed computer components—a main memory, cache, bus, and processor—were generic and conventional. The ’740 patent’s programmable operational characteristics did not provide the inventive concept, according to the court, because they represent generic concepts that determine the type of data to be stored by the cache, and the patent fails to explain the mechanism for accomplishing the result. Id. at *7.

Two recent cases informed the Federal Circuit’s evaluation of whether the claims are “directed to” an abstract idea. The court noted that, In Enfish, it had held “claims reciting a self-referential table for a computer database were patent-eligible under Alice step one, because the claims were directed to an improvement in the computer’s functionality.” Id. at 1336. They explained that “the plain focus of the claims in Enfish was on an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.” Id.

Similarly, the court noted that in Thales, it had determined that claims reciting a unique configuration of inertial sensors and the use of a mathematical equation for calculating the location and orientation of an object relative to a moving platform were patent-eligible under Alice step one. Inertial sensors in prior art systems measured motion relative to the earth and were prone to computational errors. Thales, 850 F.3d at 1345. The patented system achieved greater accuracy than these prior art systems by measuring inertial changes of the tracked object relative to the moving platform’s reference frame. Id.

With these guideposts in mind, and cognizant of the difficulty inherent in delineating the contours of an abstract idea, the Federal Circuit found that the ’740 patent claims demonstrates that they are directed to an improved computer memory system, not to the abstract idea of categorical data storage. For example, the court pointed out that “[c]laim 1 requires a memory system “having one or more programmable operational characteristics, said characteristics being defined through configuration by said computer based on the type of said processor,” and “determin[ing] a type of data stored by said cache.” ’740 patent col. 6 ll. 29–38.

The specification explains that multiple benefits flow from the ’740 patent’s improved memory system. As an initial matter, the specification discloses that a memory system with programmable operational characteristics defined by the processor connected to the memory system permits “different types of processors to be installed with the subject memory system without significantly compromising their individual performance.”

The court further said “[a]s with Enfish’s self-referential table and the motion tracking system in Thales, the claims here are directed to a technological improvement: an enhanced computer memory system,” despite that the concept of categorical data storage underlies the ’740 patent’s claims in that claim 1 requires a programmable operational characteristic that “determines a type of data stored by said cache,” because “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Mayo, 566 U.S. at 71; see also Alice, 134 S. Ct. at 2354 (“[A]n invention is not rendered ineligible for patent simply because it involves an abstract concept.” (emphasis added)). Nor is the ’740 patent’s use of conventional computer components, by itself, fatal to patent eligibility where the claims “are directed to an improvement in the functioning of a computer.” Enfish, 822 F.3d at 1338. Because we conclude that the claims of the ’740 patent are not directed to an abstract idea, we need not proceed to step two of the Alice test.

One of the great oddities of the U.S. patent system is the relative ease with which the rules allow a duly examined patent to be cancelled by the PTAB. These guys were pretty disillusioned by the process, even if the result was just (I’m not judging that). I am hoping that in the future a better job can be done in examining a patent in the first place so that there isn’t arguably a “double standard” for patentability – the everyday examination standard used to examine patents prior to issuance, and the PTAB standard. It would be far better to not issue a patent in the first place, then to issue it and then have a change of heart later, after millions of dollars have been invested in the assumption the patent is valid, at least in the eyes of the USPTO.

This is an insightful take by Orin Herskowitz of Columbia University on the importance of Government policy in encouraging innovation in the US. The piece touches both on technology worker immigration policies, and the importance of a strong patent system.

Check out Marshall Phelps article about the resilience of the US patent system, published in Gene Quinn’s IP Watchdog blog.

My favorite quote in the article comes from Mark Twain’s Connecticut Yankee in King Arthur’s Court: “A country without a Patent Office and GOOD patent laws was just a crab, and couldn’t travel any way but sideways or backwards.”

I am always in favor of strengthening U.S. intellectual property rights. I find it ironic that many argue you can now find greater protections in say China and Germany. If so, this has really become a matter of international competitiveness.

I believe we should always appoint a strong pro-startup and pro-patent director for the PTO.

I believe the PTAB should use the same validity standards as the Courts, thus putting everyone on the same page.

Of course, I believe the U.S. Government should always work aggressively to halt the theft and misappropriation of our intellectual property. We are, in many ways, a national design shop, and as such, our ideas and inventions will always be key to our economic success.

I think the better course is for the PTO to promote new technologies instead of resisting them. Few of us are prescient enough to make judgements about the ultimate success of a particular technology. I’d rather guess wrong and include too much, than guess wrong and lose technological leadership going forward. So err on the side of allowance, and keep in mind, if we say no , it is more than likely another jurisdiction will say yes.

This means, obviously, that it is a mistake to discriminate among technologies, especially in a world where many of the newer inventions and technologies are melding together.

Given the importance of the patent system to the success of America, there is an obvious need for greater public understanding of these issues; from our school kids, to our political leaders, even to our Courts. We should applaud and support efforts to educate broadly in this area.

Consistent with the last point, we must remember some of the lessons of history; the patent system must, above all, remain fair and affordable. It must not become, or be perceived as, the captive of any particular segment or set of users. It should never show favoritism.

We must remember the little guys, the one group our forefathers went out of their way to include. Some of them will grow up to be big guys. (think Gates, Zuckerberg)

It’s good to see an increasing realization that US patent policy needs to regroup to help the US maintain and extend it dominance in innovation, and advantage that has been slipping away in recent years due to a weakening of the patent system. I agree with Frank Cullen, GIPC executive director of U.S. intellectual property policy, who recent said that “[s]trengthening America’s #IP climate is one of the best things elected officials can do to help grow the economy.” https://t.co/nNpHq72APW

I also agree with Rep. Lance, of Florida, who met with local businesses in his district to promote IP protections. “Strong intellectual property protections lead to innovative new discoveries that fuel economic growth,” said Rep. Lance. “Congress should be taking every measure possible to promote patents, trademarks, and copyrights in order to encourage development across a variety of industries as we move forward in the 21st century.”

The Stronger Patents Act was recently introduced by Senator Coons, and includes a number of provisions that would curb abuses of Inter Partes Reviews. You can find Senator Coons’ interview on CNBC here:

Check out IAM’s story on LinkedIn’s patent history, repeated on IP Watchdog: http://www.ipwatchdog.com/. The evolution of thinking on patents that occurred at LinkedIn is fairly typical of fast growing, baby behemoth, companies like LinkedIn. That is, while in a company such as LinkedIn can typically fly under the patent radar for some years even as it grows rapidly (i.e., not attract much attention from large patent holders, or even trolls for that matter), once it passes a certain size, it is expected to respect the patent portfolios of other companies with substantial patent positions in the space. This respect is typically paid with royalties if a company has little or no portfolio of its own, and later can be paid at least on part with cross-licensing of its own patents, if it has a solid patent position.

One of the most disturbing stats related to medical software innovation. Inexplicably, it has been targeted as constituting largely only “abstract ideas” not worthy of patenting. This is another strong indication that the U.S. patent system is sorely in need of a legislative solution to the Section 101 problem that is now a runaway train on course to do major damage to the U.S. patent system and U.S. competitiveness in the technical software arts.

Quoting from Mr. Sachs’ blog on this point:

“There apparently is very little in the field of health care management innovation that these art units consider to be statutory. Yet it’s hard to imagine a field more crucial to the welfare of the people of the United States. Political solutions alone won’t solve our skyrocketing health care costs. Radical, high risk innovation by the private sector is also needed. If radical high risk innovation can put a smart phone in everyone’s pocket, it certainly can help make health care more universally affordable. This is the type of innovation that patents are designed to promote. Table 3 below gives you an idea of the innovations in health care management that, in all likelihood, will not get patented in our current post Alice environment.”

My thanks to Mr. Sachs for continuing to shed a light on Section 101 developments in the USPTO.